SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy	

“IN THE HIGH COURT OF SOUTH AFRICA”
NORTH WEST DIVISION, MAHIKENG
CASE NO. CA 39/2016
In the matter between:
LUCKYBOY TEBOGO NZONDO                                                                                                                                                      APPELLANT
and
THE STATE                                                                                                                                                                                                                                RESPONDENT
  
KGOELE J AND Gutta J   
CRIMINAL APPEAL
GUTTA J.
A.           INTRODUCTION
[1] The appellant was charged and convicted in the court a quo of Rape read with the provisions of section 51(1) part 1 of schedule 2 of Act 105 of 1997.
[2] On 29 August 2013 he was found guilty as charged and sentenced to life imprisonment.
[3] The appellant appeals both the conviction and sentence.
B.             EVIDENCE
[4] The evidence briefly is as follows:
4.1         Mr Lazarus T.(T.) testified that he and the complainant and others travelled together in a bakkie to the tavern. He and the appellant were initially drinking together and then they parted ways. When the tavern closed at 4am, he and the appellant and other passangers including the complainant both climbed into a bakkie to take them home. The appellant complained about giving one lady R250.00 but didn’t say who the lady was. The appellant also insulted him and tried to make him fall off the bakkie. When they alighted the appellant pulled the complainant. He reprimanded the appellant and told him to ‘leave the child alone because tomorrow you will be in trouble’. He said the appellant continued insulting his parents’ private parts and wanted to cut him with an empty 750ml black label bottle that he had in his possession. T. retreated and crossed the road. The appellant crossed the tar road and hit the complainant with an open hand on her left cheek. He went home where he explained to his sister that the appellant had taken the complainant by force. The following day he went to see the complainant who reported to him that the appellant had raped her. She told him that she had not reported the rape. He then reported it to the complainant’s grandmother.
4.2         Under cross examination, he admitted to drinking from 18:00 until 20:00. He said the complainant was not drinking alcohol. She was seated under a tree outside the tavern. He did not see her in the tavern.
4.3         The complainant, W. T. testified. She is 16 years old. She said on the 4 July 2010, she was at the tavern with her friends. On her arrival she bought cold drinks and sat underneath a tree. After a while they entered the tavern and remained there until the tavern was closing. She did not consume alcohol. A bakkie was used to take them home and on arrival, they alighted and the appellant grabbed her and told her that she was going nowhere as she had taken his money. She said T. reprimanded the appellant and told him to leave her alone. The appellant threatened T. with a knife and then he pulled and dragged her across the road. After crossing the road, the appellant hit her with an open hand and pulled and dragged her to his place of residence. On their arrival, she ran to the neighbours as she knew them and knocked on the door but no one opened. The appellant grabbed her and took her to another shack further away where no one was living. He opened the shack with the knife that he had in his possession. He used the torch from his cellphone and they entered the shack. He told her to undress and she refused. He insulted her and threatened her with the knife and told her to keep quiet. He undressed her and ordered her to lie on the bed where he raped her. He did not use a condom.
4.4         She denied that the appellant bought her an alcoholic drink called Reds. She also denied that the appellant proposed to her and that they had an agreement. She said when she returned   home, her grandmother opened the door and she went to sleep. She slept for the whole day and when she awoke she made herself some food. While preparing food T. arrived and asked her where the appellant was and she told him that the appellant raped her. T. then called her grandmother and she explained to her grandmother what had happened. Her uncle and aunt and the police were called and her mother was informed. She was taken to Bophelong Hospital where blood samples were taken and she was examined. Thereafter she went to the police station where they took her statement. She said she did not consent to sexual intercourse.
4.5         She said when the appellant left the tavern, he had a black label bottle in his hand. She also saw the appellant having a knife in his possession. The appellant assaulted her more than 3 times with open hands. T. did not see the appellant assault her more than once. She said she slept the whole day because she was in pain. She did not report to her grandmother when her grandmother opened the door because she was ‘scared’. When the appellant walked her home he threatened her that she should not tell anyone. She said the doctor saw blood on her underwear and this was her first sexual encounter. 
4.6         The appellant testified that on the day in question he did not assault the complainant but had consensual sexual intercourse with her. He said at the tavern he was conversing with the complainant and she was consuming Reds (liquor) which he bought. He propositioned the complainant. He did not know that she was a minor as no person under 18 years was permitted in the tavern and she was consuming alcohol. He said when the tavern closed about 15 to 16 people boarded the back of bakkie which belongs to the owner of the tavern. When they alighted he and the complainant went to his place of residence. 
4.7         He said after they alighted the bakkie, the complainant was embracing him around the waist and T. was against him and broke a bottle in from him. He said T. was against him because he bought liquor for the complainant who was consuming with his sister and he did not want the complainant to go with him. The complainant told T. to stay away and mind his own business. 
4.8         Under cross examination, the appellant said he did not see the complainant run to the neighbours’ house. He also denied taking her to another shack but said they had sexual intercourse at his place of residence. 
C.           GROUNDS OF APPEAL
[5] The grounds of appeal on the conviction are the following:
5.1         The Court a quo erred in failing to properly analyse the evidence of the State witnesses.
5.1.1   There were material contradictions between the evidence of the two State witnesses. T. said the complainant spent most of the time, ten hours, outside the tavern underneath a tree and he did not see the complainant inside the tavern, while the complainant said she spent most of the time inside the tavern and denied drinking and being in company of the appellant.
5.1.2   When they alighted the motor vehicle, T. said that appellant threatened him with a 750ml beer bottle while the complainant said T. was threatened with a knife. 
5.2         The Court also failed to consider the following improbabilities in the State version.
5.2.1   People in the bakkie would have intervened and assisted if the appellant assaulted or pulled ‘the child’ by force.
5.2.2   The appellant in the morning after sexual intercourse accompanied the complainant to her place of residence. This conduct is inconsistent with the behavior of someone who had just committed rape.
5.2.3   When the complainant arrived at home, her grandmother opened the door for her and asked her where she had been and she said she had been with friends. She had an opportunity to tell her grandmother but she lie to her. 
5.2.4   She only told T. that the appellant raped her at about 17:00 only after T. went to her and confronted her. The report was made to T. because T. knew that she was with a male person in the early hours of the morning and she may have feared that T. may tell the elders or her grandmother.
5.3         The appellant testified and denied assaulting the complainant and taking her by force.
5.3.1   The court erred in finding that the appellant changed his version whereas he was elaborating on the version that he initially gave.
5.3.2   The medical report of the complainant does not show that she was physically assaulted. It also did not show signs of forceful penetration contrary to what is expected when a thirteen year old is raped.
5.3.3   The court erred in finding that there was no love relationship between the appellant and the complainant. It is probable that the appellant and the complainant met each other inside the tavern and the appellant proposed love to her and that the sexual intercourse was consensual.
5.4         The appellant could not have known that the complainant was under sixteen years as there was a sign or document at the tavern written “under 18 not allowed” and there was a security at the entrance of the tavern.
D.          EVALUATION
[6] The evaluation of the evidence in a criminal trial was correctly enunciated in S v Chabalala 2003(1) SACR 134 (SCA) at paragraph [15]: 
“The trial court’s approach to the case was, however, holistic and in this it was undoubtedly right: S v Van Aswegen 2001 (2) SACR 97 (SCA). The correct approach is to weigh up all the elements which point towards the guilt of the accused against all those which are indicative of his innocence, taking proper account of inherent strengths and weaknesses, probabilities and improbabilities on both sides and, having done so, to decide whether the balance weighs so heavily in favour of the State as to exclude any reasonable doubt about the accused’s guilt. The result may prove that one scrap of evidence or one defect in the case for either party (such as the failure to call a material witness concerning an identity parade) was decisive but that can only be an ex post facto determination and a trial court (and counsel) should avoid   the temptation to latch onto one (apparently) obvious aspect without assessing it in the context of the full picture presented in evidence…”
See also: S v Trainor 2003 (1) SACR 35 (SCA) at paragraph [9].
[7] Malan JA in R v Mlambo 1957 (4) SA 727 (A) 738 (A-C) said the following:
“In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.”
[8] An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case. See: S v Phallo 1999 (2) SACR 558 (SCA).
[9] The complainant’s evidence is corroborated by T.’s testimony in the following respects:
9.1         She did not consume alcohol at the tavern.
9.2         When they alighted the bakkie, the appellant grabbed the complainant and T. reprimanded him and told him to leave her alone.
9.3         Thereafter the appellant threatened T.. Although T. alleged that the appellant threatened him with an empty beer bottle and the complainant alleged that the appellant threatened him with a knife which is a contradiction, the fact of the matter is that both the complainant and T. testified about a threat made by the appellant. Furthermore the complainant testified that the appellant was in possession of an empty beer bottle when he left the tavern. This court also takes cognisance of the fact that the witnesses testified three years after the incident and the complainant was only 13 years old at the time and her recollection may be poor.
9.4         The appellant crossed the tarred road and hit the complainant with an open hand on her cheek.
9.5         The appellant took the complainant away by force.
9.6         The next day the complainant reported to T. that the appellant had raped her.
[10] The appellant’s reliance on an alleged contradiction between T. and the complainant that the complainant spent most of the time outside the tavern, under a tree while the complainant’s testimony was that she spent most of the time inside the tavern, is ill founded because T. testified that he never saw complainant inside the tavern and not that she did not enter the tavern at all. The complainant on the other hand is saying that she was seated outside the tavern but there was a time where she went inside the tavern. There is no contradiction.
[11] The appellant’s submission that there are improbabilities in the state case in that people in the bakkie, would have intervened when the appellant was assaulting the complainant is also without merit. T. tried to intervene and he was insulted and threatened by the appellant. People by their nature are fearful when confronted by criminal activities and prefer not to get involved. Furthermore this incident occurred in the early hours of the morning when people were returning home from the Shebeen. 
[12] The other improbability raised by the appellant, is that when the complainant arrived home in the morning she had an opportunity to tell her grandmother what had happened to her and she did not. The complainant in my view gave a reasonable explanation that she said she was afraid to tell her grandmother. One has to also consider the fact that the appellant was only 13 years old. She slept for the whole day and said she was in pain and when she awoke the first person she spoke to was T. and she reported to him when he enquired, that the appellant raped her.
[13] The other issue raised by the appellant is that according to the J88 there are no signs of forceful penetration contrary to what is expected when a thirteen year old is raped. According to the J88, the doctor concluded that although there are no visible signs of violence, the absence of any sign could not rule out the physical aggression. The lack of signs of forceful penetration are of no consequence. In any event the appellant does not deny sexual penetration.
[14] In S v Pistorius 2014 (2) SACR 314 (SCA) at paragraph [30] the court held that:
“It is a time-honoured principle that once a trial court has made credibility findings an appeal court should be deferential and slow to interfere therewith unless it is convinced on a conspectus of the evidence that the trial court was clearly wrong (R v Dhlumayo & Another 1948 (2) SA 677 (A) at 706; S v Kebana [2010] 1 All SA 310 (SCA) para 12.”
This is so because of the fact that as the trial court was “steeped in the atmosphere of the trial” it had the advantage of observing the witnesses as they testified which the appeal court never had. Also see R v Dhlumayo & Another 1948 (2) SA 677 (AD) at 705 - 706
[15] The learned magistrate made credibility findings in this matter. He found the complainant to be a credible and reliable witness. The appellant has not demonstrated that the regional magistrate was wrong on the credibility findings which he made. In my view, not only was complainant an honest witness, her evidence is reliable, and sufficient to sustain a conviction. This I say having considered all the evidence and the necessary caution required when dealing with the evidence of a single witness (see R v Mokoena 1932 OPD 79 at 80; S v Webber 1971(3) SA 754(A); S v Sauls 1981(3) SA 172 (A) at 180E-G).
[16] The appellant failed to put the following version to the defence witnesses:
16.1     the complainant approached the appellant’s brother’s wife at the first tavern and wanted to talk to him;
16.2     he met the complainant at the first tavern and because they did not have the alcohol beverage she wanted to consume, they left for the second tavern;
16.3     the complainant sat on his lap when they drove to the second tavern;
16.4     the complainant was consuming alcohol with the appellant’s sister;
16.5     that he was not initially drinking with T. and only when he ran out of money did he leave T. and join other people;
16.6     that it is T. who broke the bottle when they alighted the bakkie.
16.7     the complainant was embracing him around the waist when they alighted the bakkie;
16.8     that T. was against him because he was buying liquor for the complainant and because he did not want the complainant to go with him; and
16.9     that the complainant told T. to stay away and mind his own business.
[17] The appellant’s credibility was thus compromised by his failure to put his version to the defence witnesses. Furthermore the appellant relies on consensual agreement concluded between himself and the complainant but there is no explanation for the following:
17.1     Why both T. and the complainant would lie to court and what their possible motive would be.
17.2     Although the appellant did not bear the onus, he did not call either his brother’s wife or his brother to corroborate his version as he said the complainant approached his brother’s wife and told her she wanted to talk to the appellant and that they were all, including his brother and the complainant, consuming alcohol together. 
[18]       The appellant’s version that he believed that the complainant was over the age of 18 because she was in the tavern consuming alcohol leaves a bitter taste. The complainant was a young girl aged 13 while the appellant was aged 25. He was an adult and as such has a responsibility to enquire about the young woman/girl’s age before engaging in a sexual relationship. The probabilities weigh in favour of the complainant’s version that she was not consuming alcohol and that the appellant took her by force and raped her. This was her first sexual encounter. 
[19] In S v Hadebe and other 1997 (2) SACR 641 at p642, it was stated that “It was well to recall yet again the well-established principles governing the hearing of appeals against findings of fact, which were, in short, that in the absence of demonstrable and material misdirection by the trial court, its findings of fact were presumed to be correct, and would only be disregarded if evidence showed them to be clearly wrong”.
[20] Given the conspectus of evidence, I am of the view that the learned magistrate correctly rejected the appellant’s version that it was not reasonably possibly true and found that the state discharged the onus of proving beyond reasonable doubt that the appellant raped the complainant. 
E.             SENTENCE
[21]       The grounds of appeal on sentence are the following:
21.1     The sentence of life imprisonment imposed by the trial court is strikingly in appropriate and induces the sense of shock, taking into account the circumstances of this case and the mitigating factors in favour of the appellant.
21.2     The court failed to give sufficient weight to the personal circumstances of the appellant and the circumstances of the case and their cumulative effect, thus misdirected itself. The court failed to adequately take into account the prospects of rehabilitation and the element of mercy was overlooked. S v Rabie 1975 (4) SA 855
21.3     The appellant can be rehabilitated and again become a member of our society. A lesser term of imprisonment could still emphasise the seriousness of the offence and serve the interest of society while rehabilitating the appellant. S v Malgal 2001 (910) SACR 469 SCA; S v Mayisela 2013 (2) SACR 129 GNP
21.4     There are substantial and compelling circumstances present to warrant the interference of the sentence of life imprisonment.
[22] A trial Court exercises discretion when imposing a sentence.   An appeal Court may not and shall not interfere with the sentence imposed unless it is convinced that the sentence discretion has been exercised improperly or unreasonably.   See S v   Sadler 2000 (1) SACR 331 (SCA) at para 8;   S   v   Swart 2000 (2) SACR 566 (SCA) at para 21.
[23] A Court of appeal will only interfere with the sentence imposed by the trial court if it is vitiated by an irregularity or misdirection or when the sentence is shockingly severe, disturbingly inappropriate and totally out of proportion to the offence committed.   See S v   Coetzee 2010 (1) SACR 176 (SCA);   S   v   Matlala 2003 (1) SACR 80 (SCA).
[24] In S v Vilakazi 2009 (1) SACR 552 (SCA) at paragraph [13] – [19] 559 e – 562 d, the court held that:
“if any circumstances were present that would render the prescribed sentence disproportionable to the offence, this would constitute weighty justification for the imposition of a lesser sentence”.
[25] The appellant’s personal and mitigating factors are the following:
25.1     the appellant was 25 years old at the time of the commission of the offence;
25.2     he was gainfully employed, earning R2200.00 per month;
25.3     he had a 3 month old child;
25.4     the appellant had consumed alcohol;
[26] The aggravating factors are the following:
26.1     a knife was used to subdue and threaten the appellant;
26.2     this was the complainant’s first sexual encounter;
26.3     the complainant was only 13 years old when she was raped.
[27] The appellant was not a first offender. He has a previous conviction of theft which the court a quo disregarded for sentencing purposes. This coupled with the fact that the appellant did not show remorse has a bearing on whether he is a candidate for rehabilitation.
[28] In Rammoko   v   Director of Public Prosecutions 2003 (1) SACR 200 (SCA) the Court acknowledged that in rape matters there are bound to be differences in degree of seriousness and that the differences should receive recognition when considering an appropriate sentence.
[29] There is no gradation between ten years imprisonment ordinarily prescribed for rape, and life imprisonment prescribed if any one of eight aggravating features present. This situation poses a real risk of incongruous and disproportionate sentences being imposed. It is incumbent upon the court to assess whether the prescribed sentence is indeed proportionate to the particular offence.   See S   v   Vilakazi 2012 (6) SA 353 (SCA).
[30] In S v EN 2014 (1) SACR 198 (SCA), the appellant was convicted in a Regional Court of the rape of his 15 years old stepdaughter and sentenced to life imprisonment.   The Court at 203C–D, paragraph [14] held that:
“Courts should take care to elicit the necessary information to put them in a position to exercise their sentencing discretion properly.   In rape cases, for instance, where a minor is the victim, more information on the mental effect of the rape on the victim should be required, perhaps in the form of calling for a report from a social worker.   This was especially so in cases where it was clear that life imprisonment was being considered to be an appropriate sentence.   Life imprisonment is the ultimate and most severe sentence that our courts may impose and therefore a sentencing court should be seen to have sufficient information before it to justify imposing that sentence.”
The Court at 203J–204B, paragraph [16] held that:
“Rape was a very serious offence, especially when perpetrated against a minor.   It deserved severe punishment, but the circumstances under which it took place were relevant in the consideration of an appropriate sentence.   There was no doubt that there was a public outcry to stop the scourge of rape.   In the circumstances of the present case, however, a sentence of life imprisonment would be disproportionate to the crime.   There were therefore substantial and compelling circumstances justifying a lesser sentence than the one imposed.”
[31] In S   v   Vilakazi supra, the Court, at 374C–375D, paragraphs [55]–[57] took, inter alia, the following circumstances into consideration when it altered the sentence of life imprisonment with a sentence of 15 years:
31.1     that there had been no extraneous violence, or threat, and no physical injury other than that inherent in the offence;
31.2     there was very little upon which to measure the emotional impact on the complainant.   The emotional distress and damage that accompanied rape might be extensive even if it was not manifested overtly.   This was all the more so in the case of young girls.   Even though the district surgeon had observed no signs of stress, it must be accepted that no woman, least of all a child, would be left unscathed by sexual, and that in casu the complainant must indeed have been traumatised.   However, the evidence revealed nothing more specific than that.
[32] In an unreported decision of S   v   Mokoena 2013 JDR 0635 (GNP), a 10 year old girl was raped by a 24 years old man.   The complainant was on her way to school when the appellant hit her twice with his clenched fist on her face, close to her ear, took her clothes off, let her lie on her school bag and raped her, using a condom.   The appellant was sentenced to life imprisonment.   The Appeal Court altered the sentence of life imprisonment to 20 years and held that the circumstances of the rape are less aggravating when compared to those in S   v   Mahomotsa 2002 (2) SACR 435 (SCA);   S   v   Nkomo 2007 (2) SACR 198 (SCA);   and S   v   Vilakazi supra.   
[33] Section 51(3)(aA)(ii) of the Act provides that an apparent lack of physical injury to a complainant shall not be regarded as substantial and compelling circumstances justifying a lesser sentence than the prescribed minimum.
[34] In the case of S   v   SMM 2013 (2) SACR 292 (SCA) at paragraph [17], the appellant, a 47 years old man, was convicted of the rape of his 13 years old niece and sentenced to life imprisonment.   As regards the sentence, the SCA at 297f–298d, paragraph [14], remarked that:
“Our country was facing a crisis of epidemic proportions in respect of rape, particularly of young children.   The rape statistics induced a sense of shock and disbelief. The concomitant violence in many rape incidents engendered resentment, anger and outrage.   Although government had introduced various programmes to stem the tide, the sexual abuse of particularly women and children continued unabated. There was consequently increasing pressure on the courts to impose harsher sentences primarily, as far as the public was concerned, to exact retribution and to deter further criminal conduct.   It was trite that retribution was but one of the objectives of sentencing and that in certain cases it played a more prominent role than the other sentencing objectives.   One could not however only sentence to satisfy public demand for revenge: the other sentencing objectives, including rehabilitation, could never be discarded altogether in order to attain a balanced and effective sentence.”
[35] The Court in S v SMM supra at 302b–g, paragraph [26], held further that:
“A literal interpretation of section 51(3)(aA)(ii) of the Act would render it unconstitutional, since it would require Judges to ignore factors relevant to sentencing crimes of rape, which could lead to the imposition of unjust sentences.   The proper interpretation of the provision however did not preclude a court sentencing for rape to take into consideration that a rape victim had not suffered serious or permanent physical injuries, in order to arrive at a just and proportionate sentence.   It was settled law that such factors needed to be considered cumulatively, and not individually.”
The Court found that a sentence of 15 years imprisonment would meet the objectives of sentencing and would fit the crime, the criminal and the needs of society.   See also S v Maswanganyi 2014 (1) SACR 622 (GP), where the Court referred to S   v   SMM supra, and held that the lack of physical injury will, however, still be relevant and taken into account when the existence of substantial and compelling circumstances is considered.
[36] In the case of DPP, North Gauteng v Thabethe 2011 (2) SACR 567 (SCA) at 577G–I, the Court held that:
“[22]       . . .   Rape of women and young children has become cancerous in our society.   It is a crime which threatens the very foundation of our nascent democracy which is founded on protection and promotion of the values of human dignity, equality and the advancement of human rights and freedoms.   It is such a serious crime that it evokes strong feelings of revulsion and outrage amongst all right-thinking and self-respecting members of society.   Our courts have an obligation in imposing sentences for such a crime, particularly where it involves young, innocent, defenceless and vulnerable girls, to impose the kind of sentences which reflect the natural outrage and revulsion felt by law-abiding members of society.   A failure to do so would regrettably have the effect of eroding the public confidence in the criminal justice system.”
[37] The purpose of sentencing is deterrence, prevention, rehabilitation, retribution and punishment.   I am of the view that when considering the mitigating facts and the appellant’s personal circumstances cumulatively as well as the authorities cited supra, and bearing in mind all the factors relevant when imposing an appropriate sentence, and blending this with an element of mercy, that the trial court erred in finding that there were no substantial and compelling circumstances to warrant a deviation from the minimum sentence of life imprisonment. However when considering the aggravating factors mentioned supra, I am of the view that a long term prison sentence is warranted.
[38] The appellant, because of his age is a suitable candidate for rehabilitation and after serving his sentence he can be reintegrated into society and can contribute positively to the society. In the circumstances a sentence of 16 years imprisonment will achieve the desired purpose of sentencing.
[39] Consequently the following order is made:
1.       The appeal on conviction is dismissed;
2.       The appeal on sentence is upheld;
3.       The sentence imposed by the trial court is set aside and substituted with the following:
“16 years imprisonment”
4.       The sentence is antedated to 29 August 2013.

_________________
N GUTTA
JUDGE OF THE HIGH COURT

I agree

__________________
A M KGOELE
JUDGE OF THE HIGH COURT

APPEARANCES
  
DATE OF HEARING                                                                             :   26 AUGUST 2016
DATE OF JUDGMENT                                                                        :   15 SEPTEMBER 2016
  
COUNSEL FOR APPELLANT                                                   :   ADV M.E SETUMU
COUNSEL FOR RESPONDENT                                             :   ADV M.T MOETAESI
  
ATTORNEYS FOR APPELLANT                                             :   LEGAL AID SOUTH AFRICA
ATTORNEYS FOR RESPONDENT                                     :   DIRECTOR OF PUBLIC PROSECUTIONS